Spicer's lawyers seek case dismissal

Missing evidence would make retrial unfair, defense says

February 11, 2000|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

With evidence missing, defense lawyers asked an Anne Arundel County judge yesterday to dismiss the case against Brady G. Spicer, who is facing a high-profile retrial next month on charges that he nearly beat to death an Annapolis restaurateur a decade ago.

Gone from the prosecution's evidence are an Annapolis police composite sketch of the attacker, a tape of an investigator's interview with the defendant and photographs shown to witnesses. What happened to that evidence -- whether it was lost, misplaced or destroyed and by whom -- is unknown.

A trial without that evidence would be unfair to Spicer, defense attorney Carroll L. McCabe argued.

"This is an eyewitness ID case," she told Circuit Judge Clayton Greene Jr., saying the crux of much of the defense, in a case that has no physical evidence to tie anyone to the crime, "is issues of identification."

But Assistant State's Attorney Warren Davis III asked Greene not to punish prosecutors by dismissing the case or by barring witnesses or evidence because there is no allegation of wrongdoing.

"The standard is they must show bad faith," he said. Neither police nor prosecutors, including Steven M. Sindler who prosecuted Spicer in 1992, could account for what happened to the evidence.

Spicer, 43, served seven years of a 30-year sentence before a fed- eral judge said in December 1998 that a 1992 conviction had been unfairly won and ordered a new trial, in part because county prosecutors had failed to tell Spicer's lawyer that a witness against him had changed his story. Last year, the U.S. Court of Appeals for the 4th Circuit affirmed the ruling. The witness recanted last spring and died.

Prosecutors have stood by the 1992 conviction, saying a jury found Spicer guilty and state courts upheld that. More recently, they said they might have at least one new witness.

Spicer, who has maintained his innocence, is accused of the near-fatal beating of Francis "Bones" Denvir as the popular restaurateur worked in his upstairs office Feb. 22, 1990, at Armadillo's at Annapolis' City Dock.

Photos questioned

Yesterday, defense attorney Daryl D. Jones questioned the remaining police photographs that were shown to witnesses because they are copies of the photos the witnesses saw.

Denvir's attacker was described in part as a dark-skinned black man. In a six-person photo array from which one witness picked Spicer as possibly being the assailant, Spicer was the only dark-skinned black male. But just as the other photos showed lighter-skinned men, they also showed variation in the blue background, ranging from a bright shade to a near-gray.

The defense's fallback position was a request for the judge to gut the prosecution's case by barring the two eyewitnesses from identifying Denvir's attacker in court or from photos.

The judge has various options, including denying the defense's request or barring only the identifications made from the photos. That ruling is expected by Wednesday.

Attacked from behind

Slugged from behind with liquor bottles, Denvir did not see his attacker. The assailant broke nearly every bone in his face, but left more than $1,000 on Denvir's desk.

After exhausting their leads and with Denvir ending his cooperation -- he told The Sun he needed to get on with his life -- Annapolis police suspended their probe. Then, Larry Michael Brown, with the prospect of a 20-year sentence if convicted of drug charges, told his lawyer that Spicer had said incriminating things to him in the days before and after the crime. He changed that in grand jury and trial testimony, saying he saw Spicer run from the scene. In exchange, he won probation in his own case.

Last year, before dying, Brown said he had lied to get the deal.

Annapolis police who knew Spicer doubted he beat Denvir, and several testified for him at a post-conviction hearing.

On the witness stand yesterday in a hostile exchange with prosecutor Davis, one former Annapolis detective said he did not believe Spicer was the attacker.

Knee injury

An issue not raised at the first trial was Spicer's ability to run. Spicer said a knee injury a year and a half before the crime left him unable to run. Witnesses said the attacker, who outran an Armadillo's bartender, was very fast. The 1992 jury heard nothing about Spicer's injury.

Defense attorneys said they were unsure if they would use the new issue next month, depending on results of a medical evaluation scheduled for today. Over defense objections, Greene ruled that as long as the defense was having an expert examine Spicer, the prosecution could do the same.